Legislature wants to clamp down on lawsuits, entice doctors in bid to rein in Medicaid

TALLAHASSEE — Republican lawmakers struggling to contain Florida’s $20 billion-and-growing Medicaid program are taking an unconventional approach: They’re going after trial lawyers and the rights of injured patients to sue. Although lawsuits, insurance premiums and the amount of damages paid have all gone down since Gov. Jeb Bush drove through caps on medical-malpractice cases in 2003, GOP lawmakers appear poised to dramatically scale back personal-injury lawsuits. The reason: They hope to entice the influential lobbies for hospitals, doctors and insurers to drop their opposition and swallow Medicaid reform. “We’re hopeful that we can craft a plan that won’t make everyone happy but will offer some sweeteners to get them to buy into a reform package,” said Senate President Mike Haridopolos, a Merritt Island Republican who has put Medicaid reform atop his agenda this session. So plans taking shape to hand over most of Florida’s 3 million Medicaid patients to managed-care companies also propose to shield the doctors, nursing homes and hospitals treating them from large injury payouts. Doctors and hospitals have traditionally fought the spread of managed care in Medicaid because it squeezed their bottom lines. And reform will worsen that squeeze: Besides putting patients in health-maintenance organizations, lawmakers want to cut hundreds of millions of dollars in rate reimbursements for Medicaid providers. Nonetheless, doctors are giddy at the wave of new lawsuit limits. “It will be the biggest session for tort reform. It could be bigger than 2003,” said Florida Medical Association general counsel Jeff Scott. Among dozens of tort changes, the Senate Medicaid plan (SB 1972) limits “pain and suffering” damages in wrongful-death lawsuits against nursing homes to $250,000. And doctors or hospitals treating Medicaid patients would have their liability capped at $300,000, unless the injured parties were able to prove that the provider acted “in bad faith or with malicious purpose.” The House added a similar $300,000 cap to its Medicaid package (HBs 7107, 7109) last week. Florida’s last major overhaul of medical malpractice produced non-economic caps of $500,000 for doctors and $750,000 for hospitals. The differences would make it less financially feasible for lawyers to invest in legal fights on behalf of low-income Medicaid patients, lawyers complained last week. “It creates two doors to the courthouse: one for the haves and one for the have-nots,” Orlando personal-injury attorney Maria Tejedor told lawmakers. Tejedor said the changes could also reduce the number of catastrophically injured Medicaid patients who sue for their injuries and get future treatment paid for by private insurers instead of taxpayers. “Tort reform worked in 2003,” she said. “Medical-malpractice insurers are doing well in this state. Taxpayers are not.” But Republican backers shrugged off her concerns. “I find it hard to believe we would take a trial attorney’s opinion on what costs the state and what doesn’t cost the state,” said Rep. Rob Schenck, a Spring Hill Republican sponsoring the House Medicaid plan. The caps on payouts for injuries, he said, “will have a tremendous, positive effect on the state budget.” Tort-reform battles are nothing new in Tallahassee. Doctors and lawyers are long-standing and well-financed mortal enemies. But this year is shaping up to deliver the biggest-ever wins for physicians and insurers, thanks to the more conservative bent of the Florida Senate and Gov. Rick Scott, who campaigned on tort reform. Besides the Medicaid bill, Republicans are pushing other legislation that would shield hospitals from suits against health-care providers that cause injuries in their facilities, as well as placing new restrictions on the use of “expert witnesses” in lawsuits. “It seems like there’s always been this tacit agreement not to go for the jugular. But this year, that’s off,” said Grant Kuvin, an Orlando medical-malpractice lawyer with Morgan & Morgan. Kuvin and other lawyers have argued that there’s little evidence another round of tort reform is needed. Malpractice claims and payouts have decreased since the 2003 reforms, and the number of doctors in the state has grown. The number of closed lawsuits has dropped from 3,574 in 2004 to 3,087 in 2009, the last year that the Office of Insurance Regulation has data. Payouts have fallen from $664 million to $570 million during the same time frame, and total premiums paid dropped to $550 million, from $860 million. But backers argue Florida still lags the nation in recruiting and keeping doctors with specialties such as emergency medicine, neurology, orthopedics and internal medicine. More than one-third of the state’s doctors are over the age of 56, according to the Department of Health. And doctors still pay much higher medical-malpractice premiums than their peers in other states — nearly $42,000 for primary-care doctors in 2009 and $171,000 for specialists. But the same studies that identify the doctor shortages list the state’s large uninsured population and lack of residency-training programs as primary reasons for the lack of doctors. And a DOH survey of 23,297 active physicians last year found “low compensation” — not lawsuits — as the main reason doctors weren’t accepting new Medicaid patients. Of the 8,529 doctors not accepting new patients, 42 percent said low pay was the reason. Lawyers argue those findings should lead policymakers to put the blame on insurance companies. But legislators are largely silent about insurance rates. “These rates are high because of the claims experience they’re having. The insurance company is the middleman,” said Rep. Mike Horner, the Kissimmee Republican sponsoring the House’s major medical-malpractice bill, HB 497. “My intention is to get at the problem. My goal is to lower these rates, and the way you do that is to lower the claims.”